“Do former presidents enjoy presidential immunity from criminal prosecution for acts they allegedly engaged in while in office, and if so, to what extent?” This is a question the Supreme Court has addressed. This is the latest issue in the world, and it will have a direct impact on leading candidates ahead of a presidential election that is historically expected to be divisive.
Indeed, many acts fall into a gray area.
Years ago, when I was analyzing the potential guilt of federal agents for the murder and torture of Americans in Iraq, I realized that moving the hypothesis from grayscale behavior to a more black-and-white scenario meant that the issue of impunity I found that I could understand it better.
Rather than asking whether acceptable interrogation techniques have gone too far, consider this: Could a current or former president be indicted for selling crack cocaine from the Oval Office? What if you hired a hitman to neutralize your political competitors? And how would the answers to these questions change if the president claimed that the sales and violence were aimed at national security?
In a legal landscape full of complexity and entrenched norms, these hypotheses evoke outlandish scenarios. But these thought experiments serve as a poignant gateway into a deeper look at the complex web of presidential prerogatives, the exercise of executive power, and the pursuit of accountability at the highest echelons of government. As the nation grapples with issues of justice and transparency, these scenarios offer a sobering glimpse into the potential pitfalls of navigating the intersection of law, power, and politics.
Two important Washington norms underlie the ongoing debate over whether Donald Trump should be immune from prosecution for actions related to his tenure in the White House.
First, there is a norm of investigating misconduct at lower levels, but only criticizing misconduct at higher levels. This is similar to the idea that “an old mistake was made.” In the military, this means “a different smack for each rank,'' or, more prosaically, “a nasty rolling hill.''
The second norm in Washington is that you can criticize policies, but you should refrain from criticizing individuals. This was evident during his 42 years as President Bush and his subsequent efforts to demand accountability for torture. Attorney General Eric Holder blocked the pursuit of senior government officials and the former president by establishing the Justice Department's investigative parameters. Furthermore, when footage of torture in Thailand was destroyed by CIA agents in violation of a New York judge's court order, the judge's remedy was essentially to say, “Don't do that again.” Ta. This reflects a culture that is too complacent and too focused on criticizing policies rather than individuals.
The combination of these norms has made Washington as a whole, and SCOTUS as an institution, reluctant to authorize criminal prosecution of the president.
Therefore, the Colorado decision is an effort to water down Section 3 of the 14th Amendment to ensure that the disqualification of suspected insurrectionists who want to run for Congress does not create liability for January 6th. It stands to reason. Congress would have to pass a bill to implement the amendment, so there would be no confusion for anyone at the top.
When we turn our attention to cases of presidential immunity, these norms may once again be tacitly influential. We must be wary of attempts to 1) distinguish between official and private actions, and 2) determine who makes those decisions and under what circumstances.
The distinction between official and personal conduct reflects what happens when state criminal charges are brought against a federal employee in state court under the Federal Employees Removal Act. At the defendant's motion, the case will be transferred from state court to local federal court to determine whether federal agents acted within the scope of their duties. If so, the case will be dismissed before trial. If not, it could be remanded or the case could proceed in federal court. A recent example is the election interference case of Mark Meadows, a Georgia prosecutor.
However, the jurisprudence in this area tends to be very favorable to defendants. For example, one of the criteria is whether the crime is clearly stated to alert federal officials to the risk of criminal liability. Members of the Supreme Court, who have questioned the ambiguity of the criminal law, appeared to indicate that the inquiry could feature prominently in future decisions. Another criterion is to distinguish between ministerial acts, which may be prosecuted, and discretionary acts in the role, which may not be prosecuted. The president's role is generally perceived to be almost entirely discretionary. Alternatively, courts could interpret the scope of federal officers' duties broadly, making them unprosecutable. Because the federal government operates through officials, a broad interpretation of officials' duties may provide qualified immunity.
As a result, state charges against federal officers were dismissed. As for federal prosecutors, where there is no tension between competing state and federal prosecutors, the two norms once again prevent the Justice Department from pursuing senior civilians such as former presidents and cabinet members.
With all this in mind, let's go back to our first hypothesis. Could the president face criminal charges for selling crack cocaine from the Oval Office? This example helps clarify the issue.
Based on recent oral arguments before the Supreme Court in Trump v. United States, determining whether an act is actionable depends on whether it constitutes a private act or an official act done for national security reasons. It is possible that this applies to Under this distinction, some of the questioners argued, the president would be immune, halting federal prosecution if his actions could be described as official, and likely leading to his removal from office by state prosecutors. If the official conduct distinction is recognized, I argue that such a distinction should not absolve the president from criminal liability because of the broad powers he exercises. At best, official actions can serve as a defense in a full-fledged trial in federal court.
Nevertheless, if there is a distinction to be made, it is between official acts performed under presidential power (for which Justice Robert Jackson's three-part analysis of presidential power from the top to the bottom may apply) and acts performed under public power. There should be a gap between criminal acts committed. It would be outrageous if the latter exceeded the constitutional or congressional powers granted to the former president during his term in office.
This distinction was made in France in the 1990s, when several senior officials, including then-former Prime Minister Laurent Fabius, were accused of authorizing the use of untested blood for transfusions, resulting in HIV infections and deaths. Ta. Although authorities approved the act, the act itself constitutes manslaughter, which is a tort.
An analysis of lawsuits under the Federal Employees Removal Act shows that two norms that impede the pursuit of top leadership often result in federal courts quickly dismissing qualified immunity cases in state courts, and in some cases, the severity of the alleged criminal offense. Gender will be overlooked. However, this is not the case for federal prosecutors who have no conflicting sovereign concerns.
An inherent risk in the existence of a president, especially in a unitary executive presidency, is that individuals with great power may employ him for criminal purposes. A look back at past wrongdoings, such as the torture and enhanced interrogation techniques I mentioned above, highlights how pernicious executive power can be. Nevertheless, if we accept that wrongdoing can permeate the highest levels of government, we should proceed with prosecution accordingly. Although it may be difficult to prosecute a sitting president due to the demands of the presidency and legal precedent, individuals should also be subject to trial once they have left office and there is evidence to support criminal charges. It is.
At least in my view, this embodies the essence of the “reverse flow stealth” or increasing responsibility principle. For those concerned about prosecuting mistakes, it is important to note that mistakes are not always actionable. But the same standards of negligence and willful ignorance that apply to ordinary citizens should apply to former presidents.
Another layer of complexity, not addressed in the SCOTUS oral arguments hypothesis, arises when the president involves foreign individuals or authorities in the commission of illegal acts. Consider a scenario in which a president recruits a Russian death squad to eliminate political opponents by throwing them out of windows or poisoning them with polonium. Does such an act fall under diplomatic authority? Are they considered official acts?
The potential implications of first distinguishing between official acts and later using them as a defense are clear. Involvement in foreign affairs introduces aspects that may prompt the invocation of state secrecy principles and diplomatic exceptions aimed at preventing federal or state criminal prosecution. This tactic has been observed in various detainee cases during the war on terror.
History has shown that there is a willingness to devise strategies to protect presidents from criminal liability, without even getting into controversial topics such as self-pardons and other Washington maneuvers to avoid accountability for government officials. There is no shortage of skilled lawyers.
Certainly, offering a “get out of jail free card” should be avoided. But before we consider such extreme measures, we must stop the creation of “never fear jail” cards for senior officials from the president down. It's no surprise that presidents all the way back to Thomas Jefferson have called for such protections, but as a society we should reject them.
Amid legal debate over presidential immunity, the Supreme Court's deliberations on whether former presidents can enjoy immunity from criminal prosecution for actions deemed official while in office come especially in the run-up to a contentious presidential election. , is having a significant impact. In this context, the use of thought-provoking hypotheticals, such as that the president sells crack cocaine from the Oval Office or mobilizes foreign hitmen for political purposes, is a healthy challenge to the boundaries of executive power. This will invite scrutiny. In our pursuit of justice and transparency, we must remain vigilant against the erosion of accountability, recognizing that no individual, regardless of their stature, is above the law. As the nation grapples with these critical issues, upholding the principles of accountability and integrity in governance is more urgent than ever.
Benjamin G. Davis is Professor Emeritus of the University of Toledo School of Law.
The opinions expressed in the JURIST Commentary are the sole responsibility of the authors and do not necessarily reflect the views of JURIST editors, staff, donors, or the University of Pittsburgh.
